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“Home Rule” Vs. “Dillon's Rule” for Washington Cities

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“Home Rule” Vs. “Dillon's Rule” for Washington Cities “Home Rule” vs. “Dillon’s Rule” for Washington Cities Hugh Spitzer* ABSTRACT This Article focuses on the tension between the late-nineteenth- century “Dillon’s Rule” limiting city powers, and the “home rule” ap- proach that gained traction in the early and mid-twentieth century. Wash- ington’s constitution allows cities to exercise all the police powers pos- sessed by the state government, so long as local regulations do not con- flict with general laws. The constitution also vests charter cities with control over their form of government. But all city powers are subject to “general laws” adopted by the legislature. Further, judicial rulings on city powers to provide public services have fluctuated, ranging from deci- sions citing the “Dillon’s Rule” doctrine that local governments have only those powers clearly granted to them by the legislature, to the “home rule” view that charter and optional code cities have broad un- specified powers. Despite actions by lawmakers to expand city home rule powers, recent court decisions have puzzled practitioners by alternately voicing these two approaches in a seemingly random fashion. This Arti- cle describes the origin of Dillon’s Rule, places it in a national context, and explains its longevity in Washington despite the legislature’s clear intent to eliminate the rule’s application to most cities. The Article sug- gests that the zombie-like reappearance of Dillon’s Rule is explained by (1) the vitality of the rule as a doctrine applicable to special purpose dis- tricts; (2) appellate judges’ insistence on picking and choosing from doc- trines (including ostensibly dead doctrines) to support a case’s outcome; and (3) a combination of doctrinal forgetfulness and carelessness. The Article repeats a recommendation made five decades ago by former Uni- versity of Washington law professor Philip Trautman that the Supreme Court of Washington should adopt a more consistent approach, one that * Acting Professor of Law, University of Washington. The author thanks P. Stephen DiJulio, Pat Mason, and Will Patton for their insightful comments on earlier drafts and Nathan Barnes for his research assistance. Thanks also to the University of Washington Gallagher Law Library’s reference staff for their always-extraordinary research and editing assistance. 809 810 Seattle University Law Review [Vol. 38:809 follows the legislature’s clear intent to make Dillon’s Rule inapplicable to most cities. I. INTRODUCTION Home rule is a way of structuring the relationship between state governments and cities so that the cities are empowered “to administer [their] own affairs to the maximum degree” with “the right to determine the form of government” and “to define the nature and scope of munici- pal services involving matters of purely local concern.”1 Home rule is an approach to structuring government meant to push as much power down to the local level as is practicable, reducing interference by the legislature or other agencies of state government.2 Home rule is also supported by a legal doctrine relating to the formal distribution of power between states and their local governments.3 Former University of Washington professor Philip Trautman observed that home rule is often sustained by constitu- tional provisions designed to limit legislative control of certain munici- palities so that they may “frame their own charters and thereby determine their own powers with respect to local or municipal affairs.”4 Washington State adopted a trio of home rule constitutional provi- sions in 1889,5 but commentators, including Trautman, have criticized the state’s courts for applying a more restrictive approach to local gov- ernance than the constitution and statutes require6—sometimes following 1. Ernest H. Campbell, Municipal Home Rule (Univ. of Wash. Bureau of Gov’t Research & Serv., Research Memorandum No. 53, 1958). 2. Terrance Sandalow, The Limits of Municipal Power Under Home Rule: A Role for the Courts, 48 MINN. L. REV. 643, 644 (1964). 3. Id. at 645. 4. Philip A. Trautman, Legislative Control of Municipal Corporations in Washington, 38 WASH. L. REV. 743, 765 (1963). 5. Article XI, section 10 of Washington’s constitution provides, in part: “Corporations for municipal purposes shall not be created by special laws; but the legislature, by general laws, shall provide for the incorporation, organization and classification in proportion to population, of cities and towns, which laws may be altered, amended or repealed.” WASH. CONST. art. XI, § 10. Article XI, section 10 provides a roadmap for citizens of medium-sized and large cities who desire to adopt a local charter governing the form of government. Id. Article XI, section 11 provides all cities and counties with strong local police (regulatory) powers: “Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws.” WASH. CONST. art. XI, § 11. In addition, article XI, section 12 states that the legislature must not impose taxes on local governments for local purposes, but instead may vest local authorities with the power to assess and collect taxes. WASH. CONST. art. XI, § 12. 6. See, e.g., ROBERT F. HAUTH, THE MUNICIPAL RESEARCH & SERVS. CTR. OF WASH., THE EROSION OF HOME RULE—THE NEED TO STRENGTHEN POWERS OF MUNICIPAL SELF GOVERNMENT IN WASHINGTON (1990); JESSE J. RICHARDSON, JR. ET AL., IS HOME RULE THE ANSWER? CLARIFYING THE INFLUENCE OF DILLON’S RULE ON GROWTH MANAGEMENT 10 (2003), available at http://www.brookings.edu/~/media/research/files/reports/2003/1/01metropolitanpolicy%20richardso 2015] “Home Rule” vs. “Dillon’s Rule” for Washington Cities 811 the narrow Dillon’s Rule, which limits local government powers to those expressly granted by statute or those necessarily implied.7 This was first pointed out in 1916 by Columbia University professor Howard McBain, who published a detailed treatise on home rule in the several states (in- cluding Washington) that had adopted it in the late nineteenth and early twentieth centuries.8 Despite legislative efforts to clarify and strengthen home rule powers, the Supreme Court of Washington has been notably inconsistent in its pronouncements on city authority, and this has been confusing both to municipal lawyers and to the city leaders who guide policies and programs. Apart from McBain’s treatise and a supplemental study by Colum- bia University’s Joseph D. McGoldrick in 1933,9 no account of Washing- ton State’s experience with home rule has analyzed its history within a national context. The concept and its inconsistent handling by the judici- ary are better understood by reviewing populist and progressive reform politics in the late nineteenth and early twentieth centuries, as well as the next wave of home rule advocacy after World War II. This Article, in Part II, reviews Dillon’s Rule in relation to post- Civil War American jurisprudence that was heavily influenced by legal academics. It then discusses the municipal home rule provisions that were adopted across the country at the turn of the twentieth century. The Article shows how the framers of Washington’s 1889 constitution—one of the earliest in the nation with a home rule provision10—intended to confer broad local powers on cities by enacting a local government pro- vision that was very progressive for that point in history. But there were n/dillonsrule.pdf; Trautman, supra note 4, at 782–83; Robert F. Brachtenbach, Comment, Home Rule in Washington—At the Whim of the Legislature, 29 WASH. L. REV. 295, 298 (1954); Michael Mon- roe Kellogg Sebree, Comment, One Century of Constitutional Home Rule: A Progress Report?, 64 WASH. L. REV. 155 (1989). 7. See, e.g., Port of Seattle v. Wash. Utils. & Transp. Comm’n, 597 P.2d 383, 386 (Wash. 1979) (a special purpose district case) (“The Port, as a municipal corporation, is limited in its powers to those necessarily or fairly implied in or incident to the powers expressly granted, and also those essential to the declared objects and purposes of the corporation. If there is a doubt as to whether the power is granted, it must be denied.” (citations omitted)); City of Aberdeen v. Nat’l Sur. Co., 275 P. 62, 63 (Wash. 1929) (“[M]unicipal corporations have only the powers conferred by statute.”). 8. HOWARD LEE MCBAIN, THE LAW AND THE PRACTICE OF MUNICIPAL HOME RULE 455 (1916). 9. JOSEPH D. MCGOLDRICK, LAW AND PRACTICE OF MUNICIPAL HOME RULE, 1916–1930 (1933). 10. DALE KRANE ET AL., HOME RULE IN AMERICA: A FIFTY-STATE HANDBOOK 11 (2001). Krane et al. list Washington as the second state with a home rule constitutional provision, but Cali- fornia probably should be viewed as the second. California’s 1879 version was effective only as to one city: San Francisco; but Washington’s was modeled in part on California’s. See infra notes 46– 47 and accompanying text. 812 Seattle University Law Review [Vol. 38:809 a variety of understandings of what “home rule” meant, and the Supreme Court of Washington initially interpreted the constitution’s municipal powers provision restrictively, particularly with respect to municipal au- thority outside of “police” (i.e., regulatory) powers. In the Progressive Era at the beginning of the twentieth century, the court shifted to a broader view of city powers. Later, after World War II, rapid urban and suburban growth and increasing demand for city services led the legisla- ture to extend the robust local powers enjoyed by the larger charter cities to virtually all the cities in the state. The net result, as described in Part III, was a hybrid type of home rule based both on the state constitution and on statutes. Under the con- stitution, Washington cities, as well as counties,11 have substantial inher- ent police powers.
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